CIHM 
Microfiche 
Series 
(i\/lonographs) 


ICIVIH 

Collection  de 
microfiches 
(monographies) 


Canadian  Instituta  for  Historical  Microraproductioni  /  Institut  Canadian  da  microraproductiont  historiquaa 


•  !• 


Technical  and  Bibliographic  Notes  /  Notes  technique  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best  original 
copy  available  for  filming.  Features  of  this  copy  which 
may  be  bibliographically  unique,  which  may  alter  any  of 
the  images  in  the  reproduction,  or  which  may 
significantly  change  the  usual  method  of  filming  are 
checl(ed  below. 

r^     Colou.  ed  cavers  / 
' — '      Couvenure  de  couleur 

I     1      Covers  damaged  / 

' — '      Couverture  endommagee 

I     I      Covers  restored  and/or  laminated  / 
— '      Couverture  restaur^  et/ou  pelliculee 

I     I      Cover  title  misRing  /  Le  litre  de  couvenure  manque 

I     I      Coloured  maps  /  Cartes  gtegraptiiques  en  couleur 

I     I      Coloured  ink  (i.e.  other  than  blue  or  black)  / 

Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

I     I      Coloured  plates  and/or  illustrations  / 
—      Planches  et/ou  illustrations  en  couleur 

I     I      Bound  with  other  material  / 

Relie  avec  d'autres  documents 

I     I      Only  edWori  available  / 
' — I      Seule  edition  disponible 

I  I  Tigiit  binding  may  cause  shadows  or  distortion 
along  interior  margin  /  La  reliure  serr^e  peut 
causer  de  I'ombre  ou  de  la  distorsion  le  long  de 
la  marge  int^rieure. 

I  I  Blank  leaves  added  during  restorations  r.nay  a^Mar 
' — '  within  the  text.  Whenever  possible,  these  have 
been  omitted  from  filming  /  II  se  peut  que  certaines 
pages  blanches  ajout^es  lors  d'une  restauration 
apparaissent  dans  le  texte,  mais,  kxsque  cela  etait 
possible,  ces  pages  noni  pas  ete  filmSes. 


L'Institut  a  microfilme  le  meilleur  examplaire  qu'il  lui  a 
et6  possible  de  se  procurer.  Les  details  de  cet  exem- 
plaire  qui  sont  peut-Stre  uniques  du  point  de  vue  bibli- 
ographique,  qui  peuvent  modifier  une  image  reproduite, 
ou  qui  peuvent  exiger  une  modifications  dans  la  meth- 
ode  normale  de  filmage  sont  Indiques  ci-dessous. 

I     I      Coloured  pages/ Pages  de  couleur 
I     I      Pages  c"  'maged  /  Pages  endommagees 


D 


Pages  restored  and/or  laminated  / 
Pages  restaurees  et/ou  pelliculees 


r~L  Pages  discoloured,  stained  or  foxed  / 

^^  Pages  decolorees,  tachetSes  ou  piqu6es 

I     I  Pages  detached/ Pages  detachSes 

1^  Showthrough/ Transparence 

D 


Quality  of  print  varies  / 
Qualite  inegale  de  I'impression 


I     I      Includes  supplementary  material  / 

Comprend  du  materiel  supplementaire 

I  I  Pages  wholly  or  partially  obscured  by  errata 
— '  slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image  /  Les  pages 
totalement  ou  partiellement  obscurcies  par  un 
feuillet  d'errata,  une  pelure,  etc.,  ont  6te  filmees 
a  nouveau  de  fafon  k  obtenir  la  meilleure 
image  possible. 

I  I  Opposing  pages  with  varying  colouration  or 
' — '  discolourations  are  filmed  twice  to  ensure  the 
best  possible  image  /  Les  pages  s'opposant 
ayant  des  colorations  variables  ou  des  decol- 
orations sont  filmees  deux  fois  afin  d'obtenir  la 
meilleur  image  possible. 


I     I      Additional  comments/ 

' — '      Commentaires  suppl^mentaires: 


This  itwn  it  f ilmad  it  tht  rtduction  ratio  chKkfd  btlow/ 

Ce  dacunitnl  «t  film*  au  uux  dt  rtduction  indiqui  ci^doious. 

lOX  14X  HX 


12X 


16X 


2tX 


D 


Th*  copy  filmsd  hara  hu  b«an  rapreduead  thank* 
to  tha  ganaroiity  el: 

National  Library  of  Canada 


L'anamplaira  filmA  ful  raproduil  grica  t  la 
gintroaiM  da: 

Bibliothaqua  national*  du  Canada 


Tha  imagaa  appaaring  hara  ara  tha  baat  quality 
pouibia  conaidaring  tha  condition  and  lagibillty 
o«  tha  original  copy  and  in  kaaping  with  tha 
filming  contract  apaciticationa. 


La*  imaga*  auivania*  ont  Ota  raproduiia*  avac  la 
plu*  grand  ioin.  compt*  tanu  da  I*  condition  *i 
da  la  naitatt  da  I'anamplaira  (ilmO,  at  »n 
eonfermit*  avac  laa  eenditiens  du  central  da 
fUmaga. 


Onginal  eopnt  in  priniad  papar  covar*  ar*  fllmad 
baginning  with  tha  from  covar  and  anding  on 
tha  laat  papa  with  »  priniad  or  illuatratad  impraa- 
»ion.  or  tha  back  covar  whan  appropriata.  All 
other  original  copies  ara  fllmad  baginning  on  the 
tint  page  with  a  printad  or  llluitratad  impras- 
sion.  and  anding  on  tha  laat  paga  with  a  printad 
or  illuatraiad  impraaaion. 


Tha  lait  racordad  frama  on  each  microflcha 
shall  contain  tha  tymbol  —^  (moaning  "CON- 
TINUED"), or  tha  aymbel  V  (meaning  "END"), 
whichavar  appliea. 

Mapa,  platea,  chana,  ate,  may  ba  fllmad  at 
different  raduction  ratio*.  Tho*a  too  larga  to  be 
antiraly  included  in  ona  axpoaura  ara  filmed 
baginning  in  tha  uppar  laft  hand  cornar,  laft  to 
right  and  top  to  bottom,  as  many  framas  aa 
requirad.  Tha  following  diagrama  illustrate  the 
method: 


Lea  axamplairaa  originaun  dont  la  couvanura  an 
papiar  aat  imprimea  sont  filmaa  tn  commancant 
par  la  pramiar  plat  at  an  tarminani  sou  par  la 
darniira  page  qui  comporta  una  ampramia 
d'Imprassion  ou  d'illuatration.  soit  par  la  second 
plot,  selon  le  caa.  Toua  lea  autras  axemplairas 
originaux  son.  ">m*a  an  commancant  par  la 
pramiOra  paga  i«ui  eompona  una  amprainta 
d'impraasion  ou  d'illu*tration  at  mn  tarminant  par 
la  dernidre  peg*  qui  comporte  una  telle 
ampreinta. 

Un  do*  aymbole*  *uivant«  spparaitra  *ur  la 
darnidre  imaga  da  chaque  microfieha.  salon  le 
cos:  le  aymbole  •^*ignifia  "A  SUIVRE".  la 
aymbole  V  aignifie  "FIN". 

Laa  canaa.  planchea.  tableaux,  ate.  pauvant  itra 
film**  d  dea  taux  da  reduction  different*. 
Lorsque  le  document  est  trop  grand  pour  atra 
raproduit  an  un  *eul  cliche,  il  est  filma  e  partir 
da  Tangle  supOriaur  gaucha.  da  gaucha  1  droita. 
at  da  haut  an  bas,  »n  pranant  la  nombra 
d'images  nOcessaira.  Lea  diagrammet  auivants 
IUu*treni  le  methede. 


1 

2 

3 

6 


MKiocorr  HKxuriON  rcr  chakt 

lANSI  Gnd  ISO  TEST  CHART  No.  2| 


^ti^^ 


^    APPLIED  IM/IGE    Ini 


^i 


v^ 

M 


'  ^1 


THE  ADMINISTRATION 
OF    JUSTICE 


ADDKESS   BT 

WILLIAM    RENWICK 

Of  TwoirTo.  CAHAiii.  Binai  thi  iixniiu 

KriTJ  IU«  AMUCIIIIU  »T  CaiCAOO. 

Mil  2>.  IM4 


THE  ADMINISTBATION  OF  JUSTICE. 

William  Renwick  Riddell,  of  Tohonto,  Canada. 

The  officers  of  your  Association  have  paid  me  Oie  very  liieh 
compliment  of  askinpf  me  to  a.Mrcss  you  at  this  your  annual  meet- 
ing; and  I  can  think  of  no  suhject  o'  more  interest  tlian  that  in 
which  wo  are  all  concerned.  The  Administration  of  Justice  And 
believe  me,  I  am  fully  conscious  of  the  great  honor  you  have  thuB 
conferred  upon  me,  however  unworthy  may  he  its  recipient 

1  have  no  intention  in  what  may  be  said  to  hold  up  our 
methods,  our  Courts,  as  an  eiatnple  to  te  followed,  much  less  to 
criticise  your  methods,  your  Courts  or  the  results  you  may  attain 
My  remarks  will  he  mostly  of  a  general  character;  but  if  there 
be  found  anywhere  in  them  aught  which  will  be  helpful  toward 
the  ends  we  all  havf  in  common,  I  shall  be  glad. 

It  would  seem  tliat  very  shortly  before  historic  times,  man 
lived  m  anarchy,  vindicating  his  rights  and  avenging  his  wrongs 
by  his  own  strong  right  hand;  when  "wild  in  woods  the  noble 
savage  ran,"  he  knew  no  law  but  his  own  desires,  no  master  but 
him  who  held  him  by  force;  everything  was  to  him  right  iliat  he 
liked,  wrong  was  what  he  disliked.  The  unutterable  cruelty  and 
misery  of  those  times  may  escape  the  poet,  but  never  the  sociologist 
or  statesman. 

When  man  began  to  be  gregarious  and  formed  clan,  and 
sepU,  It  was  soon  recognliied  that  no  community  coul'"  prosper 
whose  only  rule  was  the  ruie  of  might,  where  each  was  judge  of 
*iat  he  was  entitled  to  and  was  permitted  to  acquire  and  keep 
all  he  could.  The  desires  of  one  crossing  the  desires  of  another 
one  must  give  way  or  be  made  to  give  way— the  weaker  slain 
or  disabled  by  the  stronger,  by  so  much  weakened  the  community 
and  laid  it  the  more  open  to  conquest  and  destruction  by  other 
communities— while  even  if  matters  were  not  pushed  to  that  ex- 
tremity, the  rankling  sense  of  injustice  which  corroded  the  heart 
of  him  who  had  been  forced  to  submit,  was  itself  a  deleterious 
element.  .   , 


Accordingly  it  miiBt  early  have  hcon  di'termineil  that  con- 
fliclintr  intorcsts  of  two  ihciiiIk'™  of  'lio  same  ootnmunity  muit  b* 
detcmiineil  liy  an  in(!i'|)<ii(lf nt  triliunal.  At  first,  no  doubt,  the 
King  or  I'ricst— !lic  words  were  long  aynonymoui — the  wite  or 
kenning  Kl'  r— wa»  the  ,I..dgc.  For  long  the  Judge  receired 
inspiration  from  the  god,  not  unconiiiionly  the  c|>onymou(  hero,  in 
each  parti'ular  case,  "itory  cane  wan  treated  on  its  own  merit*," 
and  tlie  ..ceision  of  tiie  god  v;o8  sought  on  the  particular  ca«c 
witliout  regard  to  general  t.,]e.  'I'he  litigants  re<eiving  the  judg- 
ment of  the  god.  The  (ireat  Master,  must  needs  be  satisfied  that 
what  was  said  to  tlieni  was  as  the  (ireat  Superior  wished — He 
could  always  say  sic  volo,  sic  jnbro.  slat  pro  ratione  voluniat. 
Even  when  the  dwtrin  •  of  special  liispirntion  grew  shaky,  the 
judge  continued  to  adjudiciite  on  the  particular  case  before  him 
almost  if  not  quite  irrespective  of  what  he  had  decided  in  a  previous 
case  and  with  little  or  no  thou),'ht  of  how  he  might  decide  in  * 
subsequent,  principle  being  far  in  the  future. 

Nor  did  this  wholly  cease  to  he  the  case  when  record  or  tra- 
dition gathered  the  "themistes"  which  had  been  pronounced,  and  * 
fauiily  or  order  of  functionaries,  priests— call'  them  what  you 
will— were  the  guardians  of  past  judgments  and  considered  aa  en- 
trusted witli  knowledge  of  the  will  of  the  gods.  Something  like 
principle  did  indeed  creep  in— something  approaching  a  general 
rule  was  gradually  appreciated,  but  still  there  was  not  law  in 
our  modem  sense. 

That  was  practically  the  condition  of  the  Indian  when  Amer- 

ice  was  discovered;  (it  is  said  "the  ludians  had  few  laws  but  they 
were  well  violated");  and  it  is  the  condition  of  many  inbcs  of 
so-called  savages  today.  It  is  a  great  mistake  to  suppose  that 
there  is  more  litigation  in  Chicago  or  in  Toronto  in  proportion 
to  population  than  there  was  among  the  Iroquois  or  'i  among  the 
wandering  tribes  of  the  desert.  The  difference  is  that  In  these, 
every  law  suit  is  a  thing  by  itself,  in  those  every  law  suit  is  con- 
nected with  thousands  of  others  which  have  preceded  it.  There  is 
no  satisfactory  ividenc3  of  the  advantage  of  one  method  over  the 
other  in  doing  substantial  justice. 

In  ancient  Ath#na_p_rina»pJ«'did  not  quite  make  its  way,  did 


.  ,  t  ,n  „.„„,  ,.„,,„..  l,.«-i,.  «„.at  n,.™„r..  whut  ..  wi,.,„.  J 
IK'  1  *    .ns  law,  »n<l  |„,  ,l,v|,|,.,|  aifunlinffly. 

tlH   full  tLrnry  of  l„w  „«  „  primipl,,  „,  a  ,o||,...tion  of  binding 

i:t:;i'.  '"""■"' "'  ""■  ""*-  •-•■-  ^' »-'''  -- .« ::'; 

Our  T,.ut„ni,.  nno..tor.  I„„l   their  own   l„w,  cruel,   JlloKi.-al 

n  ono  ,         ."•       ■"  '''•*■'•"''''"•"•  «-  ''-V   in^'i-et  and  cdu  ation 
prone  (o  look  u|K,n  ,t  with  not  „,u.h  le-s  pride  than  they. 

The  history  of  Knglih  civil  luw  for  over  e  ght  centuries  ha. 
b..en  .„  «roat  ,„e„M,re  „  .„.,tory  of  conflict  hetw.'n  the  o  i™ 

of    he    leuton  „nd   the  polished  law  of  the  Kenan;  the  ,„or! 
-v.nz..l  law,  with  but  f,  ,v  »ot.back,,  ha-  be..n  all  th^  whil    « 
-Mnrtng  a  sreater  and  Rreater  aaeendancy.    Now  in  Kngland  and  in 
ntar,o,  when.  ,1,..  rule,  of  Kquity  and  of  Common  Law  eonfliJt 

lieally  all  derived  from  the  law  of  Home. 

From  the  earliest  ti„,es,  the  tribunal  to  decide  right,  might 
be  of  a  temporary  character  an,i  pro  hac  dee.  or  it  might  be  of  . 
permanent  or  quasi-pemmnent  natur..  In  tl.e  fom.er  case  how- 
over  d,sgu,sed  it  was  in  substance  a  board  of  arbitration;  'in  the 
lat  er,  by  whatever  name  it  might  be  known,  it  wa,  a  court.  The 
Court  has  grown  upon  the  Board  as  a  means  of  settling  dispute, 
and  I,  now  triumphant;  and  whenever  an  arbitration  i,  pref^rd 
o  a  Court  dee.s.on  it  is  a  disgrace  either  to  the  substantive  aw 
and  therefore  to  the  legislature,  or  to  the  practice,  and  theXe 
m  most  .nstances  to  the-Courts-in  eve-y  such  instance  tlTiZ 
h.-  proved  a  failure  nnd  the  Courts  incompetent. 

In  international  disputes  indeed  the  progress  just  spoken  of 
does  not  appear.  When  two  nations  do  not  determiie  thdr  right, 
by  the  cannon  and  bayonet,  by  ,,„unds  and  blood  and  death  by 
the  ehmmation  of  their  bravest  and  strongest,  "wet  eyes  of  w  L, 
broken  old  mothers  and  the  wh„.e  dkrk  futcheiy  »;*«.t  a  i"" 


Ilicy  liavc  lii^n'tndirc  in  nxwt  i  as<ii  fominl  a  temporary  Uoard  and 
left  it  to  tlio  Ronrd  to  decide  without  any  principle  but  "llct  ill 
you  eiin,  give  up  wlmt  you  numl."  Tuo  often  it  ii  fouuil  thit  the 
ape  and  tiger  still  survive  in  that  jungle 

Within  the  nation,  we  of  modern  timet  have  deeiilc<l  that  our 
rijjhti  must  be  determined  on  principle— on  principle  that  c«n  b* 
certainly  known,  for  they  con  lie  expretsed  in  writing. 

In  what  I  am  now  about  to  say,  I  speak  in  the  main  of  civil 
litigation.     I  shall  later  on  s|icak  oi  criminal  justice  specially. 

The  function  of  the  Court  is  to  determine  rights  according 
to  principle,  tliot  is,  according  to  law;  and  from  one  point  of  view, 
in  so  far  as  it  docs  that,  in  so  far  is  it  a  success  and  no  furtlier. 

It  is  not  enough  that  the  Court  shall  give  litigants  their  right* 
uci'ording  to  law.  The  Court  was  invented  to  prevent  strife  by 
determination  of  right  by  and  through  a  just  and  impartial 
referee;  and  unless  it  is  twlievcd  that  the  Court  is  just  and  im- 
partial, it  fails  in  a  most  important  part  of  iti  object  and  loaea 
much  of  its  value. 

Moreover  such  a  course  should  be  pursued  that  those 
who  have  disputes  shall  le  desirous  of  having  them  decided  on 
principle;  that  is,  the  superiority  of  the  professional  agent  of 
justice,  the  Court,  should  be  manifest  over  tlio  non-profetaional, 
the  Board  of  Arbitration.  The  medical  profession  should  feel  no 
more  regret  at  the  prevalence  of  resort  to  the  quack  than  the  legal 
profession  at  prevalence  of  resort  to  arbitration. 

The  relative  importance  of  two  great  ends  of  the  admin- 
istration of  justice,  that  is,  determinatioi.  of  right  according  to 
principle,  and  satisfying  the  public  that  justice  is  properly  admin- 
istered, may  depend  upon  circumstances.  In  a  judgment  of  my 
own  it  was  said:  "all  magistrates  should  remember  that  while  the 
most  important  thing  for  them  is  to  be  impartial  and  right,  it  ii 
not  much  less  important  that  litigan's  and  the  public  generally 
should  believe  in  their  impartiality  a.id  rectitude,"  Bei  t.  Mc- 
Arthur  (1906),  8  0.  W.  H.  694.  Nay,  I  am  not  at  all  sure  that 
it  is  not  sometimes  more  important  that  the  litigants  and  the 
community  shall  think  justice  is  being  done  than  that  the  de- 
..aieieq  jshaW-Jxf/itriclly/ip'.aceoijjAith  precedent.    Not  many  yean 


»K",  m  conv<.r8..hon  will,  o  rdirwl  Jui«F<,  of  the  Supremo  Court 
of  the  ir„,tod  Sint,*,  I  v,.nlur«l  to  cx|,r,«.  the  opinion  that  no 
inrni  «oul,l  huv..  ,„,tm..,|  jf  t«„.tl,ir,N  „f  ||„.  ,„^,,  j„  „,„t  ...^^ 

'»''  '"■''"  '''••■' '  'I I'"  «">■;  !"■  ..n»»vr«l,    -If  vn„  l,.,,v«  „ut 

the  ™n«t.t»tio«,.l  r«„.,   I   ,1,„„1.1  „Kr.T,  nnd  i .„!    |    ,„i„),  ,.„« 

miKlit  incn'.i,L.  the  ixrcentn^-e  consich.nihly."  Th..  ni„.|«tv  „f  one 
not  ilioronKhl.v  ,|mmil,.,|  «ill,  ,l„.  Cnn.tiluti.m,  of  k'  VnU.i 
SmUs  an,]  of  th,  .St«t„  of  th,.  t'nion,  on,,  who  live.  ,„  countrr 
without  .,  C.n.titution  (an,l  lik..»  it),  prev,.nt,.,l  nu-  .en  .peak- 
"IB  to  an  authority  on  the.,.,  from  ,p.e»tionins  <"V  frien,!'.  ,.,ee|,- 
ti"n  I  v,.ntur,.,  however,  here  to  suhioit  to  vo.i  the  <.on»i,l,.ration 
-i...at  harm  woui.l  have  {...en  ,lone  if  Ilaniel  W.lmter  iia.l  fail,.,! 
in  the  Dartmouth  ('oll,.Ke  ease?     Your  law  wmil.l  have  km  ,lif- 

ferent,  hut  wouhl   it  have  h, vors,.?      h   v.ur  law   he!t4..r  for 

the  |».ople  at  larRt^-an,!  it  i.-  the  ,K.opl,.  it  must  ulwav.  have  in 
ll«  eare-lhan  if  i»  were  as  in  Kn^'hin.!  an.l  Ontario?  '  Are  ..yen 
jour  rorporatums  riuR  the  sittings  of  ConRn-ss  an,l  rx-Rislaturf 
an.v  more  eomf.)r.  .„e  than  oure  or  those  in  Kn^laml  ?  .An,i  after 
all,  has  th,.  em.et  lH.en  niueh  more  than  to  ohiig,.  l,.Ki»latur,.a  to 
introdu,.,.  into  private  charters  a  clause  reserving  the  power  to 
reimil  or  „ll,.r  them-just  as  it  i  .i,l  (hat  practically  the  whole 
clfct  of  the  Stutut,.  of  Uses  w.  o  intro.lucc  live  wor.ls  into 
conveyanees? 

ni,l  the  decisions,  or  cither  of  them,  on  the  constitutionality 
of  taxation  of  incomes  do  any  good?  an,l  would  any  linrm  have 
beK>n  done  if  they  had  bc.t.n  the  otlier  way?  No  constitution.! 
amondmem  would  have  k*n  necessary,  hut  what  of  it?  Would 
any  one  liave  been  injured  if  he  wore  validly  taxed  under  the 
constitution  as  it  st.jod,  rather  than  under  an  amendment?  And 
do,.«  It  feel  any  more  ph.asant  or  hurt  any  less  l„  pay  an  income 
tax  than  if  it  had  been  levi,.,|  under  the  ,locument  of  the  Fathers? 
Did  the  "Drci  Scott"  division  settle  anything?  Perhaps 
It  hastened  an  inevitable  conflict,  but  did  it  do  more?  Was  the 
conflict  not  inevitable  under  any  decision,  and  was  it  rendered 
less  intense,  costly,  bloody,  terrible  by  the  decision  actually 
given  ?  ■' 

Most  hesitatingly  and   meekly    (as  bcomes  an  outsider*    I 
venture  to  suggest  to  you  that  all  the  decisions  of  the  Supreme 


Court  are  overborne  in  importanee  by  the  one  deeision  of  the 
Senate  of  tlie  tlnitcd  States  wlien  that  body  refused  to  dismiM 
Andrew  Johnson;  for  in  all  human  probability  there  will  never 
be  anotlier  inipeaehment  of  a  I'residcnt  of  the  United  States  for 
the  reason  that  lie  does  not  agree  with  the  majority  of  the  people 
or  of  Congress;  the  President  is  (S  firmly  seated  on  his  throne 
and  is  as  truly  a  monarch  for  the  term  for  which-  he  is  elected 
as  any  king  or  emperor  in  Christendom.  Benjamin  Robbina 
Curtis'  success  before  that  tribunal  was  of  vastly  more  significance 
and  of  vastly  greater  importance  to  the  United  States  and  iti 
people  than  would  have  been  success  in  the  Supreme  Court  when 
he  deli  .>red  the  superb  dissenting  judgment  which  will  continue 
to  be  the  greatest  glory  of  his  name  so  long  as  Courts  endure 
and  lawyers  reason. 

Does  not  the  decision  of  the  New  York  Court  of  Impeach- 
ment that  a  Governor  of  that  State,  their  two  year  King,  must 
behave  himself  according  to  their  views  of  honesty  and  propriety 
before  as  well  as  after  his  inauguration,  overtop  in  importance 
the  decision  of  the  unconstitutionality  of  employers'  liability  legis- 
lation? Did  this  do  more  than  call  for  an  amendment,  inevitable 
if  the  people  wanted  it?  And  what  possible  harm  could  have 
been  done  had  the  decision  been  the  other  way? 

It  is  the  regular  and  conventional  thing  to  speak  of  the  great 
principles  of  the  common  law  as  something  sacrosanct ;  to  say  that 
the  common  law  is  the  perfection  of  human  reason.  So  far  as 
these  principles  are  identical  with  enlightened  reason,  with  the 
teachings  of  the  moral  law,  there  can  be  no  complaint.  But  how 
do  they  differ  from  Justinian's  triad?  Praecepta  juris  sunt  haec. 
Honcste  viverc,  a//crwm  non  laedere,  suum  cuique  tribuere.  The 
maxims  of  law  are  those,  to  live  honorably,  to  injure  no  one,  to 
give  every  one  his  due.  Any  principles  outside  of  these,  of  what 
avail  are  they?  And  wliat  harm  if  the  rules  laid  down  by  the 
Courts  had  been  different?  The  laws  of  real  estate  at  the  com- 
mon law  no  civilized  nation  would  now  endure;  in  your  country 
and  in  mine,  the  Legislature  had  to  intervene  so  to  change  them 
as  to  make  them  consistent  with  common  sense.  What  advantage 
is  it  that  (or  if)  the  laws  of  distress  by  landlord  for  rent  be 
retninod?    AVlio  woidd  now  lay  down  the  "Rule  in  Shelley's  Case?" 


nnthin  t  ""!  '""''•""»"'»'  principles  of  honesty,  therfC 
notlnng  either  good  or  bad   in  law  but  thinking  „,ake;  itZ- 

ZLcZ  "•""'^"''r,"/"^  "•«  -S^'  "f  the  la."  Braeton  l": 
leton  Coke,  ,8  as  well  founded  as  admiration  of  the  middle  a« 
ehoolmen    and    no    more    so.     Extraordinary    ability,    profound 

learning   eonsummate  subtlety,  oharaeteri^e  lx,th  elas,esf  but  no 

one  wou  d  be  much  the  worse  if  they  had  deyoted  their  attVntion 
o  heraldo.  or  the  tracing  of  pedigrees;  or  if  in  eight  o,t    r  en 

cases  they  found  the  law  diau,etrieally  opposite  to  that  tKy  did 

tTfit^d  ^1  f^  f  '".P'^P'"  "'  '°  ^'  determined  aceording 
0  fixed  rules  la,d  down  e.ther  by  binding  deeision  or  by  legisla 

C  urt"  as"  '■  ^"^  ''°"'  """'  ""'^'"'"'^  "-  conseryatiyef  he 
to  elint  .."""'  ",":"  *"  ^'■''"«'=  "■«  '"-  "«  it  finds  it  than 
to  ehminate  the  word  "nof  from  the  commandmenta;  the  S 
pie  are  en  .tied  „  their  law  as  it  stands  and  must  submit  tHt 
whether  they  hke  it  or  not.  We  probably  all  agree  Lt 
.peakmg  generally)  the  very  first  consideration  underly  ng  Tur 
ounding  and  going  beyond  all  others,  is  that  justiee  slfll  be 
don  according  to  the  existing  law.  If  the  people  do  not  like 
the  law  let  them  change  it,  the  Court  cannot  change  it  for  them 

nenf  K  I"  •  """  '"'  ^™'*  ''"'"'''  ^  '"""^^^J  ^  **»  judg- 
ment by  the  opinions  of  litigants  or  of  any  other  person  whoms!- 

rin'„„?™rf  °'''  ■"*{  "'"'  °"™  "'"  ^  '^'^^  ">»'  judgments 
wm  not  ony  be  unpopular,  but  they  may  eyen  be  rr..pug,^t  to 
the  sense  0  justice  of  the  community;  and  yet  the  CouTmu  t 
give  precisely  these  judgments. 

But  that  does  not  imply  that  the  Court  should  so  act  as 
to  g.ye  rise  to  the  impression  among  the  people  that  it  is  wholly 
indifferent  to  a  just  public  sentiment.  Lord  Mansfield  could  say 
I  wish  popularity,"  and  he  showed  himself  a  good  public  seir- 
ant  when  he  said  so.  if  a  better  when  he  added,  "but  it  i,  that 
popularity  which  follows,  not  that  which  is  run  after,  it  is    h' 


popularity  which  soonor  or  later  never  fails  to  do  justice  to 
tlic  pursuit  of  nohle  ends  hv  nohle  means.  •  *  •  'fjgo  hoc 
animo  semper  fui.  ut  invidiam  lirtutc  partam,  gloriam,  non  tn- 
viiliam  pnlarem.' "  (I  have  always  been  of  this  opinion— that 
unpopularity  gained  by  doing  one's  duty  is  a  glory  not  a  dis- 
grace.) 

Now  justice  is  not  administered  in  the  abstract,  it  is 
justice  to  the  litigant  in  the  particular  case  that  must  be  sought; 
and  the  one  essential  of  a  Court  is  that  the  law  is  administered 
in  the  particular  cases  brought  before  it. 

.\  story  is  told  of  an  importer  who  had  been  required  to  pay 
$800  ns  duty  upon  goods  which  he  had  brought  in.  He  claimed 
that  no  duty  was  payable,  and  paid  under  protest.  He  brought 
his  action  which  made  its  way  by  slow  degrees  to  the  Supreme 
Court.  In  that  Court  all  the  Judges  gave  learned  opinions,  but 
none  said  whether  the  unfortunate  merchant  was  to  have  his 
money  returned,  and  the  Court  was  shocked  to  hear  a  troubled 
voice,  "Do  I  get  my  $800?"    Sc  non  i  vero,  i  ben  irovato. 

The  Court  is  not  (at  least  in  my  country)  the  master  of  the 
people,  but  their  servant,  supported  by  them  for  tlieir  own  use 
and  in  their  service;  t)w  judge  is  paid  by  the  people  to  do  their 
work,  and  just  as  soon  as  the  Court  is  not  worth,  directly  or  in- 
directly, what  it  costs,  it  should  he  abolished — directly  in  adju- 
dicating upon  the  rights  of  litigants,  indirectly  in  preventing  civil 
wrongs,  turmoil,  assaults,  thefts,  trespasses,  in  the  time-honored 
phrase  "maintaining  the  King's  peace." 

A  Court  docs  not  exist  for  itself;  it  is  not  an  end  in  itself. 
.\  Court  is  an  evil  and  the  less  it  is  called  into  play  the  better 
for  the  community  unless  the  evils  arising  from  this  course  will 
be  greater  than  those  arising  from  the  more  frequent  exercise 
of  its  functions. 

When  Congress  was  proposing  to  give  American  coasting 
vessels  a  privilege  in  the  Panama  Canal  not  granted  to  other 
ships,  and  Britain  made  a  protest,  basing  her  claims  upon  treaty 
(I  am  not  going  to  discuss  the  rights  and  the  wrongs  of  the 
matter,  the  American  people  are  guardians  of  their  own  honor 
and  need  no  advice  or  opinion  from  me  or  any  other  non-Amer- 


ope  .„erc  will  be  n.,  n«.e.ity,  1  i.ope'tha,  ,he  na.  ^n  ^^'J 
le  the  nmtter  without  litigatio,,,  then:  i«  no  saying  what  heart 
bnrnmg,  an,l  ,l,sco„tent«  ,„„y  arise  over  the  deciron  wo  ^n' 
Canada  still  re„,e„,her  the  Alaska  Boundary  AwarT  and  no  o^" 
-  a  r,g  t  to  ex-peet  a  repetition  of  the  e/traoTdt^r;  good  f" 
une  whah  followed  the  Fishery  Award  at  The  Hagul  f^  other 

'"  '  "■''™  ™'''  P-'-V  ^■l"i' 1  -bstantial  victory.     A  s  ttlemen 

be  ueen  the  parties  fhen.selves  is  infinitely  to  te  preferred  to  . 

mv.need;  he  was  an  American  and  consequently  thought  O.at 
there  is  nothing  like  a  court."  ^ 

The  court  was  made  for  man,  not  man  for  the  court  No 
consHlerations  of  dignity,  tradition,  espHt  iu  ,,.,,  Zui  eve 
induce  a  judge  o  forget  that  he  is  a  servant  of  the  peo  le 
paid  by  the  people  to  do  the  people's  worlc-if  he  fail  to  apprt: 
eiate  this  elementary  truth  and  to  act  upon  it  he  is  ant  To  1^ 
an  unfaithful  servant,  a  dishonest  recipi'ent  of  wag  s  p'  i  %^ 
work  which  he  fails  to  do.  Fortunately  this  class  of  judge  is 
rare;    here  is  no  "1  Won't  Work"  associations  for  tliem        ^ 

The  Court  does  not  exist  for  the  e:<hibition  of  the  personal 
dignity  of  the  judge.  Personal  dignity  in  a  judge  Ly  iTa 
valuable  asset  to  the  community  which  he  serves  it  maTLlp  to 
preserve  decorum  and  thereby  advance  public  Liness'  bu?  U 
may  be  a  detriment  ,f  of  a  certain  kind.  If  the  back  be  so 
Iff  that  u  cannot  bend  itself  to  work,  and  if  the  business  of 
the  Court  i„„.st  be  delayed  because  the  judicial  dignity  craves 
twenty-three  hours  rest  of  the  twenty-four,  the  public  can  very 
well   manage  to' get  along  without  it.     And  the'  dignitv  whjh 

Court-rrT.  ^fj'^'^^  ^-  «>'SWs  and  "coltompts  of 
Court  that  .t  has  little  time  for  anything  else,  is  bettor  placed 
e  ewhere  than  on  the  bench.     Ut  a  judge  do  his  w  rk  S 

S;o'';:rKt::,r  "^•■^'  ^"" ""  ^^^-"^  -^^ «— "^  ^ 

Tradition  is  sometimes  of  much  value:  but  it  is  tradition 
of  what  ,s  good  ai^d  useful;  a  traditional  method  of  doiLg ZT 


10 


ness  is  cooTenient  and  not  infrequently  is  the  best  srailable 
method ;  but  a  tradition,  if  there  be  one,  of  dilatoriness  or  in- 
efficiency were  better  forgotten.  What  ia  old  is  not  necessarily 
good,  nor  what  is  new,  necessarily  wrong. 

I'erliaps  tlie  most  frequent  complaint  made  anywhere  of  the 
administration  of  the  law,  is  its  delay — the  law's  delay.  One  of 
the  promises  wrung  seven  centuries  ago  from  a  reluctant  king  by 
a  resolute  aristocracy,  was  NuUi  vendcmvs,  nulH  negabimua  aut 
differetnvs  rectum  aut  jusiiciam;  to  none  will  we  sell,  to  none 
will  we  deny  or  delay  right  or  justice.  He  who  delays  justice, 
denies  it — a  truth  profound  though  it  lies  on  the  very  surface, 
patent  and  obvious,  so  patent  and  obvious  indeed  that  it  is  often 
overlooked. 

A  very  short  time  ago  I  read  an  able  article  by  an  eminent 
judge  of  one  of  the  United  States,  in  which  he  said  that  delay 
if  not  too  long  is  a  good  thing  in  litigation.  I  then  absolutely 
repudiated  that  doctrine,  as  I  do  now;  I  assert  most  confi- 
dently that  every  unnecessary  delay  is  wrong  if  not  asked  for  by 
the  parties  concerned.  The  ideal  method  of  determining  righta 
would  be  for  the  parties  when  diflRculties  arose,  at  once  to  lay 
the  farts  before  a  judge  and  have  an  Immediate  decision.  We  in 
Ontario  have  that  method  in  substance  where  there  are  no  facta 
in  dispute  but  the  only  question  is  the  interpretation  of  a  writ- 
ten document  whether  will  or  contract.  This  cannot  always  be 
done,  there  are  generally  in  dispute  facts  upon  which  the  rights 
depend ;  and  these  facts  must  be  determined  in  some  way.  The 
very  speediest  method  of  bringing  them  to  a  determine  'ion  con- 
sistent with  thorough  investigation  is  the  best;  and  a  litigant 
has  a  legitimate  ground  of  complaint  if  there  is  a  day'i  delay 
beyond  the  time  really  necessary. 

Delay  in  bringing  a  case  to  trial  may  be  due  to  the  people 
themselves;  their  representatives  may  not  have  constituted  a  Buf- 
fieient  number  of  courts,  elected  or  appointed  a  sufficient  number 
of  judges;  or  they  may  have  clogged  the  courts  by  an  intricate 
and  dilatory  practice.  In  that  case  the  people  cannot  complain; 
they  have  the  courts  and  the  practice  they  deserve.  If  they  want 
fomething   better,   let   them   do   sgrnething   better.     It   is   idle 


11 

wliining  about  an  evil  ,.|,uh  i.  due  to  one.',  self  «n,l  „n»-.    ™ 

hTat::;" "''''--  ""^— « -  "-"  ^'^ 
have  th:  Sr;iir,::  rs:/rir^"  r  <""" 

are  derelict  in  their  dut'y  if  a  0":;:"^       ^"n„  tZ'*' 
iiglitly  to  be  made.     I  have  no  hii!)!  ouininn  „f  .1  „  «    ■  j         , 

rn'rrr';-;^  '^-^  ^^^-"^  "^'-  --  » 

men  as  those  of  the  present  time,  and  "there  is  a  ereat  ded  of 
human  nature  in   man;"  but  any  institution  that  Imslod  thf 

erlon      ti  T     "^^'  '""'  ^'  '^'  non-reverent  gen- 

eration.    Still   everything  must  give   wav   to   fh,.   n„i,i,-  j 

reven-nee  for  antiquity  included.  ^      "   ^'""'• 

Speaking  generally,  if  either  litigant  eannot  compel  the  trial 

practice,  no  skinnisliing  of  lawyers,  should  prev  nt  the  t^Ul  of  I 
case  w.thin  the  time  1  have  mentioned. 

It  is  a  matter  of  the  most  profound  astonishment  to  those 

States  of  the  Union  submit:  our  people  would  not  stan.l  it  for  ! 
year,  there  would  be  such  an  outcry'in  the  pi^s  'n"^  "J™ 
hat  no  government  would  refuse  to  bring  in,  no  legis      IZ 

fuse  to  pass,  amending  and  corrective  legislation 
ifow  is  a  case  to  be  tried? 

There    may    be    constitutional    provisions    which    must    be 
obeyed  or  the  legislature  may  prescribe.     In   Ontario  theit  a^ 
very  few  cases  in  wh  cli  a  jury  is  of  ri»hf  ■  ;„         . 
the  presiding  judge  is  ..J  J  Z  IX'       m^aTt;"?!:: 
with  or  without  a  jury  as  scms  beat.     At  Toronto  ^n  To ?i 
the  lowest  court,  the  Division  Court,  not  oL  p^t^t  we"' tri^ 


13 


wilh  n  jiirv,'  in  tlu'  next  lii;,'liiT,  llic  ('diinty  Court,  IH';;   »'cri'  ti-iod 

with  n  jurv,  iinil  in  (lie  Siipicnic  CiHiit,  211'.;.     h st  ol'  tliiw 

I'liBi's  the  jury  wtTP  not  iillowptl  to  find  a  general  vcrdiet  but  were 
conlincd  to  answering  certain  questions  of  fact  suliniitted  to  tliem 
l)V  tlio  judge,  he  reserving  everjtliing  else  to  himself.  In  iioro  than 
thirty  years'  ;'Xi)erienee  I  have  known  of  only  two  appeal?  against 
the  action  of  a  trial  judge  in  striking  out  a  jury  notice — loth  un- 
successful. 

The  saying  of  time — and  wind — is  enormous.  The  oi>ening 
and  closing  speeches  of  eouni.cl  to  the  jury  and  the  charge  of  the 
judge  are  done  away;  in  argument  there  are  very  few  judges  who 
care  to  he  addressed  like  a  puhlic  meeting  and  quite  as  few  who 
are  influenced  hy  mere  oratory  -  all  indeed  must  ex  officio  be 
patient  with  the  tedious  and  suffer  fools  gladly.  Vehement 
assertion,  gross  personal  attacks  on  witnesses  or  parties,  in- 
vective, appeal  to  the  lower  part  of  our  nature,  are  all  at 
a  dincount;  and  in  most  cases  justice  is  lietter  attained,  righti 
according  to  law  are  better  ensured.  Moreover  during  the  course 
of  a  trial  a  very  great  deal  of  time  is  not  imcommonly  wasted 
in  petty  objections  to  evidence,  in  dwelling  upon  minor  and  al- 
most irrelevant  matters  which  may  influence  the  jury,  wearisome 
cross-examination  and  reiteration,  etc.,  all  of  whii.i.  ^re  mini- 
mised before  a  judge. 

But  it  is  never  to  be  forgotten  that  the  courts  belong  to  the 
people,  and  ihc  wishes — even  the  prejudices — of  the  people  must 
be  borne  in  mind.  If  for  any  reason  the  body  of  the  people  were 
to  come  to  the  opinion  that  a  judge  trial  was  not  a  just  trial, 
justice  won'l  not  be  satisfactorily  administered  if  that  form  of 
trial  were  adopted.    There  I  leave  the  matter. 

Very  often  during  the  course  of  a  trial,  facts  will  come  to 
light  which  give  a  new  turn  to  tlie  case;  some  courts  are  so  ham- 
pered, or  so  hamper  themselves,  that  they  cannot  go  outside  of 


•The  official  report  of  the  Inspector  of  Division  Courts  for  1913, 
.just  to  hand,  shows  tiiat  in  1913  the  total  number  of  suits  entered  in 
these  Courts  in  the  whole  Province  was  6^.675,  and  the  number  of 
juries  called  for  117,  a  little  less  than  one-fifth  of  one  per  cent.  The 
whole  amount  claimed  in  the  suits  broufjht  was  about  two  and  a  half 
millions;   the  cost  of  tho  juries  averaged   a   few  cents  over  $10. 


1,1 

me  i)ioa(linj,'a,     nml   gnat   injustco   may   result      Wl.pnnv..,   k 
any  l.ide-bound  practice  «  c„,.rt  cannot  do    u.iee  TlL  / 
l.oca,.e  a  lawyer  ha.,  n.ade  a  „.i„ake,  there'  fa    „r      „  t  I 

elementary  duty  „t  the  court.     ,n  the  ideal  state,  every  llrt 

I-aw  ,s  not  a  game  where  the  smartest  man   win,    it   i,  , 

'ay.      I^t   me   not   be   nii.,understood.      I    nitv    tl„.   I,iwv„;      , 

.lit  very  lew  fields  of  knowledge  which  mav  nnt  K„  „f     i 
in  enlarging  the  mind  and   unders  Inding      pin   d        ™°i'^'' 
in  the  older  authors  will  do  no  g    at  hlr^i  if  11°  f^,  r"^""^ 
to  fill  the  mind  with  antique  viewT  „  tl™  d    Z    .    ,       "  ""' 


u 

(liniinicli  the  signiliianco  of  the  fact  that  tlie  lawjer  is  a  busineu 
irmn,  hirt'il  to  do  liis  ilii'iit's  businoss. 

A  Holl  pdiicntid  Bar  is  a  prcat  ilpsideratum ;  a  8clf-res[)ect- 
ing  liar  i»  of  gnat  value— a  liar.  wluLh  never  forgetting  the  rights 
of  the  elient,  does  not  think  it  ineonsistent  with  duty  to  assist 
justice  hv  eoiirtes.v  to  ojiponents,  by  civility  to  witnesses  and 
others,  by  respect  to  the  ec.urt.  by  a  due  regard  to  the  exigenei.^s 
of  public  business.  The  noisy  showy  barrister,  who  phus  to  tlie 
gallery,  seeks  (o  iru|iress  his  clii'nt  or  the  populace  with  his  abil- 
ity nnil  inip(jvlance  by  discourtesy  to  others,  insr)lence  (more  or 
less  veiled)  to  (lu;  court,  inteririinabli'  oratory  to  the  jury,  i-  an 
evil,  a  public  nuisance.  That  class  will  always  be  met  with  where 
the  people  wont  it.  Xo  one  can  expect  total  self-abnegation  and 
disregard  of  his  own  interests  even  in  a  coun.sel ;  ami  "for  peo- 
ple who  like  that  sort  of  thing,  that  is  the  sort  of  thing  tliev 
like. 

What  about  appeals? 

The  ideal  method  would  be  for  tiie  losing  party  to  take  all 
the  evidence,  pai>ers,  etc.,  in  the  case,  at  once  before  the  appel- 
late tribunal,  and,  both  parties  being  heard,  the  case  to  be  dis- 
posed of  without  delay.  The  nearer  the  practice  is  assimilated 
to  that  ideal  system  the  better,  other  things  being  e(iual.  Tlie 
Appellate  Court  should,  if  required  by  the  amount  of  business, 
lie  continuously  in  session  witli  only  such  intervals  as  are  neces- 
sary to  consider  the  cases  presented.  The  material  before  the 
Appellate  Court  should  be  all  the  material  in  the  trial  court; 
tills  should  be  got  before  the  Appellate  Court  at  the  earliest  pos- 
sible moment  and  with  the  least  possible  expense;  the  proceedings 
should  be  as  little  technical  and  complicated  as  possible,  and  in 
this  court  as  elsewhere  ju»ti<e  delayed  is  justice  denied.  Of 
course  there  will  often  be  circumstances  causing  delay,  there  may 
bo  facts  alleged  or  statements  made  at  or  after  the  trial  which 
must  be  investigated ;  people  will  die  and  even  the  counter-irritant 
of  a  law  suit  will  not  always  keep  them  alive.  Leaving  aside  spe- 
cial cireumstances  and  speaking  generally,  if  a  losing  litigant 
cannot  have  his  appeal  heard  and  disposed  of  in  three  months  from 
trial  there  is  something  wrong.     In  a  certain  country,  a  Chief 


IS 

Just'ce  ileolined  to  tit  in  an  appeal  because  judjfment  might  not  be 
given  before  the  expiration  of  hi»  term,  more  than  three  monthi 
distant ;  tliat  fact  and  the  circumstance  tliat  it  excited  no  aston- 
ishment vill  furnish  their  own  commentary. 

Moreover  there  arc  often  trifling  errors  (generally  against 
technical  rules)  at  the  trial;  even  judges  are  not  exempt  from 
the  imperfections  of  humanity.  An  Appellate  Court  should  pay 
no  attention  to  such  defects  unless  some  injustice  results.  Tiiere 
may  he  some  fact  left  unproved  or  Inter  discovi-reii.  Why  should 
not  the  Appellate  Court  allow  the  fact  to  he  proved  before  itself? 
What  is  the  sense  in  sending  a  case  down  for  a  new  trial  with  all 
its  risks,  expense  and  trouble? 

'I'liere  is  one  failing  witi:  which  courts  of  appeal  are  very  fre- 
quently afflicted :  they  are  apt  to  forget  that  the  main  obj«t  of 
litigation  is  the  determination  of  the  rights  of  the  litigants  be- 
fore them,  and  to  imagine  that  what  they  are  for  is  to  write 
dissertations  on  the  law.  To  i.  lawyer,  there  is  nc  stronger  tempta- 
tion than  to  follow  up  a  point  suggested  in  a  case  and  to  exhaust 
the  law  on  such  point,  although  it  is  not  really  material  in  the 
case  under  consideration.  There  can  be  no  objection  to  that 
course,  but  it  should  iiot  he  followed  so  as  to  delay  a  decision 
unduly  and  thereby  deprive  the  litigant  of  his  right  to  speedy 
jii»tice.t     What  is  important  is,  "Uo  I  get  my  $800?" 

tl  i)rudiice  to  you  the  list  of  our  Appellate  Division, 
the  Court  of  Appeals  in  Ontario,  for  tlie  May,  1914,  sittings. 

There  arc  eighty-one  ca-es  on  the  list.  The  judgments  from 
which  these  appeals  are  taken  were  delivered  as  follows: 

Before  January  1,  1914 n 

In  .Tanuary,  1914 ,. 

In  February,  1914 j. 

In  "Search,   1914 44 

In  April,  1914 11 

In  all g. 

Of  those  before  Januarv  1,  1914,  two  are  cases  of  a  Municipal 
Street  Railway  which  is  being  reorganized,  and  all  parties  desire 
time  to  complete  the  financial  arrangements.     The  parties  have 


1(1 

had  •cviml  opportunitici  to  arffiic  the  appc-nls  if  Ihoy  bo  dwire, 
and  the  caaci  arc  kept  ou  the  liHt  ex  abundattii  cauMa  for  foar  the 
arrangement  may  fall  U.rough.  Three  otheri  have  stoo<l  by  ar- 
rangement of  counnel ;  and  one  to  enable  the  appi'llanl  to  proeure 
a  preliminary  onler  from  a  county  court  judge,  per>otm  ,le»ifnata 
under  the  statute.  All  of  there  have  had  at  least  one  chance  to  be 
argued.  The  tevonlh  is  a  case  tui  gencru.  \  wife  |g  ,u|ng  !,„, 
huslrand  and  conducting  her  own  case.  Two  motions  have  been 
made  by  the  defendant  to  dismiss  the  appeal  for  want  of  proaccu- 
tion,  hut  the  court  has  extended  the  time.  Much  of  the  evidence  at 
the  trial  is  said  to  bo  irrelevant,  and  the  plaintiff  is  linding  diffi- 
culty in  extracting  what  is  material.  She  scorns  professional  help 
and  is  perhaps  looking  for  a  grievance.  At  all  events  we  Ihuugbt 
we  should  not  cut  her  out  of  an  appeal. 

Of  the  five  decided  in  January,  1!)14,  two  were  delnved  by 
illness  of  counsel,  and  counsel  on  the  other  side  agreed  to  "let  the 
eases  stand;  two  by  reason  of  omission  of  stenogi nphers  to  get  out 
evidence  in  time;  and  in  the  fifth,  counsel  mislaid  his  papers  and 
the  other  side  consented  to  delay.  All  these  have  liad  at  least  one 
chance. 

We  do  not  allow  cases  to  stand  from  month  to  month  without 
inquiry.  From  time  to  time  all  cases  looking  stale  are  called  on 
to  be  spoken  to;  and  if  the  reporters  are  found  derelict  tliey  arc 
brought  to  time.  If  the  parties  are  not  really  intending  to  go  on 
with  the  appeal  promptly,  it  is  dismissed. 

During  the  May  sittings  all  the  appeals  from  judgments  de- 
livered  in  .January,  1914,  have  been  disposed  of;  of  those  before 
Januiiry,  the  two  about  the  Street  Railway  still  stand ;  one  other 
will  be  disposed  of  June  1,  another  June  5 ;  all  others  have  been 
heard. 

There  have  been  added  to  the  May  list  3  cases  in  which  judg- 
ment was  given  in  March. 
We  have  heard 

Of  those  in  February,  11  leaving  3 
Of  those  in  March,  35  leaving  12 
Of  those  in  April,  9  leaving  2 
In   addition   to   those   fully   heard,   two   involving   disputes 


17 


hitwccn  till-  Muniiipniity  ami  privato  indiviilualt  hive  been  beard 
in  part  and  ntnml  for  a  proponed  «;ttliiiicnt. 
And  wimt  Inw  Hliould  be  adniininterwl  ? 
M(wt  of  dm  KnKli«li-»|HiikinK  |Kopl(«  In    c  llio  tradition  of  the 
fundiinicntiil  dJHtinrlioii  of  Ijiw  iind   Ivpiitv.     TIiIh  riiHiinplion  i» 
hifrniiiid  nnd  hionc  from  ou.-  luurstorn  Imvin),'  ii  liiw  of  their  own  of 
which  thiv  HIT..  inonlinuti'l>  and  stuhlHirnly  prou.l  and  tonacioni. 
"NnUmtis  lrge.1  Angliae.  miilare"  «aid  the  barons  on  a  fnuniorable 
orcnfion;  nnd  nolumiis  hgm  Angliiie  mulare  tlicy  continuwl  to 
think  (»ome  indeed  eonsider  that  the  Imrona  have  not  ceased  to 
be  intensely  conservative  even  at  the  prenent  day).     The  jfrosa 
and    palp«l)le    injustice   done   by    these   venerated    legri   Angliat 
became  intolerable,  and  after  legal  fiction  had   failed  to  permit 
justice    to    be    done    in    the    law   courts,    Equity    was    invented. 
"Equity  mitigated  the  rigor  of  the  common  law"  is  the  conven- 
tional and  euphemistic  way  of  putting  it;  hut  this  clooks  the  ia- 
famies  which  the  common  law  enjoin.d  or  pennitted.     'I'he  Itiw- 
yer    was    not    till    comparatively    late    entrusted    with    this    new 
weapon;  the  churchman  was  the  early  chancellor.     But  it  got  at 
Ingth  into  the  hands  of  lawyers  and  became  as  technical  and 
as  formal  as  the  common  law  whofo  rigor  it  was  to  alleviate. 
These  two  systems  of  law  ran  along  side  by  side,  administered 
by  different  courts  for  centuries,  and  the  English  lawyer  came  to 
think  that  this  division  subsisted  in  the  very  nature  of  things. 

It  is  hard  to  dislodge  inveterate  and  traditional  opinion! 
even  when  they  are  wholly  without  solid  foundation.  The  colo- 
nial lawyers  raised  on  English  pncedents  as  pabulum,  absorbed 
the  English  idea  and  it  stuck.  I  have  before  me  as  I  write  a 
letter  on  the  subject  of  the  Courts  of  Law  of  Upper  Canada  ad- 
dressed to  the  Attorney  General  and  Solicitor  General  in  1847. 
This  was  written  by  a  member  of  our  bar  of  the  highest  standing, 
one  who  «as  afterwards  Chancellor  and  then  Chief  .Tusticc  of 
Ontario.  Addressing  the  "Chief  law  officers  of  the  Crown  for 
ITppcr  Canada  upon  a  subject  interesting  alike  to  the  profession 
and  to  the  country— the  due  administration  of  justice,"  and  at  a 
"time  when  changes  iinocar  to  he  contemplated  in  some  of  our 
ConrtF  of  Justice,"  ,ic-s  that  "law  and  equity  ought  to  be 


18 

con.i.lereU  «.  di.linct  ..,t..,n..  .„,!  ,h.t  the,  are  «  con.idered 
.n.l  kep  apart  in  K,  ,il„n.l,  i,,  porh.p.,  „ne  of  the  be.t  pro.i.ion. 
of  our  ton.t.tutmn."  If,,  approve,  the  .tate.i.ent  of  LorJ  Ehlon 
a.  to  the  mwMity  „f  that  teparation  of  Court,  of  l^w  u>,\ 
Kquity  which  ...  mainly  contribute,  to  the  tomplcte  anj  effectual 
«.linin,.tration  of  jn«ti™  to  an  extent  and  in  a  degree  ,uch  a. 
are  unknown  and  n.u.l  1«  ever  unknown  where  thai  .epar.tion  i, 
not  effectually  made  and  „h,efved."  In  Upper  Canatla  we  had 
got  along  without  a  "ourt  of  K.|uily  lili  1837,  and  there  wa.  in 
1S4,  talk  of  gettrng  rid  of  it.  Mr.  Spragge  (,|,e  writer  .poken 
of)  .  eprwta  e,  ,ueh  a  ,our.e,  .li.pute.  the  statement  of  th.«c  who 

'"■'     Z'u    ,   'iT/'"  *'""""  "  *^''""'  "'"  f'o'-rt  "f  Chancery 
WH.  estabh.hcd,"  for,  he  .ay,,  "the  .„,nmon  law  wa.  never  n.eant 
nor  I.  ,t  calculated  by  it,elf  to  form  the  juri.prudence  of  a  coun- 
try.     Without  being  tempered  by  equity  law,  it  would  often  work 
injustice,  and  in  it.  actual  operation  in  thi.  country  the  applica- 
lion  of  lU  rule,  did  work  injustice  until  a  language  began  to  l 
used  m  our  Court  of  King'e  Bench  which  would  have  «,unded 
B  rangely  in  the  ear  of  a  common  lawyer  in  England."    He  think, 
that  without  separate  courU  "the  law     •    «     .    would  degenerate 
into  an  uncertain  hybrid  system  neither  common  law  nor  equity 
but  an  incongruous  compound  of  both,  so  that  no  man  could  tell 
what  h,s  rights  are."    "We  mu.t    •    •    •    have  English  law,  a 
combmed  system   of  law  and  equity,  or  we   must  abrogate   the 
Engl.8h  law,  throw  our  whole  system  of  law  to  the  winds  and 
adopt  the  c-vil  law.     But  were  so  mad  a  scheme  proposed  me- 
thinks  Upper  Canada  would  answer  as  with  one  voice  nolumut 
yg,s  Angha,  mutare."     This  reasoning  was  adopted,  and  a.  at 
the  Parliament  of  Merlon  so  at  our  Canadian  Parliament  "Omne, 
comites  et  barones  una  voce  respondentni  quod  nolunt  leges  in- 
gliae  muiare  quas  hucusque  usiiatae  sunt  et  approbatae. 

If  any  lawyer  were  asked  to  lay  down  a  code  of  laws  for  a 
new  community  he  would  be  thought  insane  if  he  laid  down  two 
codes,  one  of  laws  to  govern  the  people  and  another,  to  modify 
and  to  that  extent  to  nullify  the  f!  .t;  and  yet  because  from  his- 
toncal  reason,  that  system  grew  up  in  England,  many  lawyer, 
thought  it  a  necessary  system.     Even  in   1847,  some  could  not 


11 


conceive  o(  tlio  IcgUliturc  cdinbining  the  two  iyitemi  into  one,  u<l 
dirwting  the  fuwd  .v.lcm  to  Ik-  upplie.l  in  ill  courti.  And  tn 
we  liail  law  anil  oiuilv  for  over  thirty  yean  longer.  In  1S81 
when  a  •iiiiplc  proiuion  wai  niaili^  that  where  the  rulea  of  law 
differ  from  the  ruica  of  «|uity,  the  rulea  of  efjuity  nhall  prevail, 
and  this  waa  appliid  to  all  court*,  many  were  the  mournful 
lamer .«  for  the  <leparted  glory  of  our  juriiprudence.  Rarhel 
we..ping  for  her  ihildren  eould  be  ai  eaiily  comforted  aa  the 
"e<iuity  lawyer"  when  he  found  that  a  proceeding  to  foreeloae 
a  mortgage  could  Iw  taken  hy  writ  in  the  Queen'i  Bench  Divi- 
Bion,  or  the  purely  common  lawyer  when  he  found  that  the  be- 
loved  principlci  of  llie  cr.irimon  law  were  ruthlcialy  aubdued  to 
the  alien  rules  of  eiiuity.  I  have  myself  heard  a  practitioner,  atill 
living,  curse  what  he  i  lUd  the  •'confueion"  of  law  and  equity; 
but  time  is  the  great  assuager  of  grief  nn.l  the  change  haa  vindi- 
cated itaclf.  No  one  now  would  think  of  going  back  to  tlic  old 
•ystem. 

This   fusion    of  law  and   equity   haa   had   lomcthing  to  do 
with  the  gradual  decay  of  the  jury  system. 

A  word  or  two  as  to  the  administration  of  criminal  justice. 
The  abominable  cruelty  of  the  Knglisf,  law,  whether  the  com- 
mon  law  as  interpreted  in  curly  times  by  the  high  placed  judge 
or  made  in  later  times  by  th  high  phiced  member  of  parlia- 
ment for  the  gove-nance  of  the  lower  classes  in  either  case  (. 
mandate  in  the  vast  majority  of  instances  of  the  superior  to  the 
inferior— revolted  the  humane.  Rules  were  .xtended  or  invented 
to  save  the  shedding  of  blood  for  petty  nr  even  serious  offenses. 
The  law  was  bnital,  and  its  brutality  was  mitigated  or  evaded 
by  the  ingenuity  of  less  blood-thirsty  judges.  Trifling  defects 
errors  of  form,  omissions  to  prove  immaterial  allegations,  mat- 
ters of  no  importance  whatever  were  laid  hold  of  to  prevent 
a  judicial  murder.  Consequently  the  result  of  a  prosecu'ion  be 
came  very  much  a  matter  of  chance;  criminals  looked  jpon  a 
verdict  of  guilty  as  a  bit  of  bad  luck.  A  chaplain  of  i-Tewgate 
of  the  time  has  left  an  awful  account  of  the  view  taken  by  prii- 
oners  of  trials,  an  account  which  haunU  the  reader  aa  a  horror 
for  years. 

Accordingly,  the  proiecution  of  w  aUeged  offender  became 


a  kind  of  sport.  The  prisoner  had  so  much  of  a  start,  so  many 
proceedings  were  forbidden  to  liis  pursuers,  he  might  double  and 
dodge,  and  in  the  end,  in  spite  of  facts  wholly  proved,  might 
escape.  It  was  a  kind  of  glorified  fox  hunt,  the  quarry  having 
a  much  greater  chance  than  a  fox. 

This  was  about  tlie  condition  of  the  law  in  England  when 
the  United  States  branched  off  and  when  Upper  Canada  was 
given  legislative  independence.  Both  took  the  law  with  them. 
The  rights  of  the  accused,  the  protection  of  the  accused,  gave 
the  watchword;  and  some  courts  have  not  forgotten  it  yet.  In 
not  a  few  courts  the  prisoner  has  so  many  and  so  sacred  rights 
that  no  one  else  has  any,  the  State  included.  Instead  of  a  crim- 
inal trial  being  a  solemn  inquiry  by  the  State  into  a  crime  al- 
leged to  have  been  committed  against  it,  a  criminal  trial  is  apt 
to  degenerate  into  a  game,  a  play,  a  spectacle  for  the  curious  and 
a  subject  for  lurid  newspaper  writing.  That  provision  made  by 
the  State  for  its  own  protection  that  no  one  shall  be  punished  unless 
and  until  convicted  by  a  competent  court  is  made  a  cloak  to  shelter 
those  who  have  undoubtedly  committed  crime;  the  pettiest  of 
all  petty  technicalities  are  invoked  as  though  they  were  the  most 
profound  of  principles,  on  the  violation  of  which  the  heavens 
should  fall.  Time  seems  not  to  be  considered  of  importance  in 
many  jurisdictions;  and  in  one  the  members  of  the  bar  say  openly 
that  a  conviction  for  murder  is  but  the  beginning  of  the  criminal 
trial. 

Solemnity  and  formality  in  a  criminal  trial  have  great  in- 
fluence upon  the  criminal  classes.  Severe  punishment  has  not 
at  all  the  same  deterrent  effect  as  certain  and  speedy  punish- 
ment. Many  a  degenerate  or  wilfully  wicked  person  would  be  will- 
ing to  be  made  the  central  feature  of  an  eight  days'  or  eight  weeks' 
show  with  a  good  chance  of  evading  punishment. 

Is  all  this  good  for  the  State? 

Once  again,  if  the  people  really  want  that  sort  of  thing  they 
must  have  it;  but  do  the  people  really  want  it?  Of  co.urse  the 
criminal  claeses,  the  potential  criminal,  the  lawyer  who"  is  p/ud 
by  the  length  of  time  lie  can  make  a  case  last  or  who  seeks  glory 
from  teclmical  ingenuity  or  florid  rhetoric,  tlie  yellow  and  near 


21 


yellow  paptT  and  its  rcailers,  all  are  in  favor  of  it.  But  the  man 
wlio  has  to  pay  for  it,  the  soher-mindcd  citizen  who  takes  an  in- 
terest and  a  pride  in  liis  eoimtry,  who  is  jealous  of  her  honor 
and  reputation— what  of  him?  and  is  he  not  to  be  considered? 

If  a  criminal  trial  is  a  game,  well  and  good.    The  fox  hunter 
who  was  expostulated  with  on  the  cruelty  of  his  sport  said,  "The 
men  like  it,  the  horses  like  it,  and  nobody  can  be  certain  that  the 
fox  does  not  like  it."    But  even  fox-hunters  pay  for  their  game 
out  of  their  own  pocket,  and  if  a  ta^a  docs  get  away  now  and 
then,  there  is  no  great  harm.    We  in  Canada  are  too  poor  to  be 
willing  to  pay  for  sucli  a  sport  and  too  busy  to  be  willing  to  waste 
weeks  on  an  investigation  for  which  days  or  even  hours  are  am- 
ple.   \Vc  think  that  except  in  very  grave  offenses,  sucli  as  mur- 
der and  the  like,  an  accused  should  have  the  option  to  be  tried 
by  a  judge  and  witliout  delay,  instead  of  waiting  for  a  jury  sit- 
tings.    If  one  charged  with  crime  be  desirous  of  trial  by  jury 
we  allow  him  a  copy  of  the  jury  panel  in  sufScient  time  to"  make 
inquiries  as  to  any  objection  to  the  jurymen,  and  when  a  trial 
is  set  we  insist  on  it  being  proceeded  with,  with  due  diligence 
and  reasonable  speed.     The  first  time  I  met  your  ex-president, 
Mr.  Taft,  he  s))oke  of  the  intolerable  delay  in  criminal  trials  in 
the  United  Stales.   I  told  him  that  a  short  time  before,  I  had  gone 
to  a  Canadian  city  to  hold  the  Assizes  on  the  same  day  that  a  few 
hours  further  along  the  same  line  of  rail  but  across  the  inter- 
national boundary,  a  judge  began  to  get  his  jury  in  a  murder 
ease;  that  I  had  tried  four  criminal  cases  and  seven  civil  cases, 
and  was  homo  in  Toronto  before  my  American  brother  had  half 
his  jury.    1  told  the  New  York  Bar  Association  that  in  my  thirty 
years  experience  I  never  saw  it  take  more  than  half  an  hour  to 
get  a  jury.    Let  me  add  that  I  have  never  but  once  heard  a  pro- 
posed juryman  asked  a  question  about  reading  newspapers,  form- 
ing an  opinion,  or  anything  else.     I  have  never  known  even  a 
murder  case  (except  one)  take  four  days;  very  few  indeed  take 
more  than  two;  none  tried  before  me  has  taken  as  much  as  two 
full  days;  and  meilical  or  other  exports  are  not  allowed  to  drag 
out  proceedings.     We  tliink  four  on  each  side  enough  except  in 
special  circumstances  and  we  keep  tliese  well  in  hand. 


88 


la  fair  play  not  the  only  natural  right  of  one  accused  of 
cnme?    It  may  bo  that  in  some  courts  the  proceedings  are  pro- 
tracted by  (he  gladiaiorial  spirit.     The  prosecuti  g  counsel  feel, 
that  he  has  a  brief  for  conviction  and  that  he  is  vannuished  and 
d.8graco.l   ,f  he  fails   in  procuring  it.    He  strains   every  nerve 
to   that   end.   .trctchcs   the   law   and   colors   the    facts;   and   if 
per  fasaulper  nefas  he  hears  the  jury  say  "Guilty"  he  is  tri' 
umphant.     I  venture  to  think  that  that  tl.eory  and  the  practice 
based  upon  it  are  wholly  vicious  and  debasing.     In  an  investi- 
gation   by  the  State  into  an  alleged  offense  against  itself,   the 
counsel  representing  *!..  State  has  the  plain  duty  to  investigate; 
and  the  State  not  desirmg  that  an  accused  be  pronounced  piilty 
If  m  fact  or  .n  law  he  is  not,  it  is  the  plain  duty  of  the  pios^ 
cutmg  counsel  to  bring  before  the  court  and  jury  all  the  facta  and 
all  the  law-what  helps  as  well  as  what  incriminates  the  accused. 
The  wholly  brutal  system  of  the  judge  being  the  moat  determ- 
ined and  effective  prosecutor  has  long  gone  out;  the  only  excuse  for 
It  was  that  not  seldom  the  judge  had  been  the  investigator  and 
had  become  certain  of  the  guUt  of  the  accused.     Howell's  State 
1  rials  are  appalling  reading  at  the  best;  and  a  judge  who  would 
act  now  as  the  most  venerated  of  the  sages  of  the  law  acted  in 
the  past  would  be  cursed  and  despised  of  all  men. 

Has  not  the  spirit  of  these  judges  descended  to  some  prose- 
cuting counsel?  *^ 

In  Canada,  the  theory  is  that  the  Crown  Counsel  rcpresenta 
the  State.  He  has  no  concern  with  whether  the  accused  is  found 
guilty  or  not.  His  whole  duty  is  performed  when  he  has  brought 
out  all  the  facts  by  direct  evidence  or  by  cross-examination  of 
witnesses  for  the  defence  and  has  summed  up  to  the  trial  tribunal 
fairly  all  the  facts.  If  the  judge  or,  in  case  of  a  jury  trial  the 
jury  think  no  case  has  been  made  out,  that  is  no  concern  of' his; 
he  is  not  to  blame.  Of  course,  human  nature  is  human  nature' 
Counsel  will  instinctively  want  to  fight  the  eoimsel  on  the  other 
side.  It  is  difficult  to  be  impartial,  particularly  when  one  has  a 
strong  conviction  of  the  guilt  of  tlie  accused ;  but  if  counsel  wilfully 
concealed  or  failed  to  bring  out  facts  favorable  to  the  prisoner's 
innocence,  if  lie  imduly  pressed  for  a  conviction,  if  he  were  to  urge 


83 

unfair  arguments  to  the  jury,  he  would  lay  himself  open  to  un- 
favorable comment  of  his  professional  brethren  and  the  public, 
as  well  as  to  stem  rebuke  by  the  trial  judge.  The  method  of 
candor  and  fair  play  brings  more  convictions  than  the  opposite 
course.  A  jury  like  fair  piny,  and  if  they  see  a  prisoner  is  not 
getting  it,  they  are  not  at  all  unlikely  to  feel  resentment  and  to 
••help  tlie  under  dog."  I  am  an  old  Crown  Counsel,  and  I  speak 
whereof  I  know. 

Speed  is  called  for  in  an  appeal  in  criminal  matters.  The 
deterrent  effect  of  punishment  varies  inversely  with  the  delay 
in  punishing:  while  if  there  is  to  be  a  new  trial,  it  should  be  as 
snon  as  possible,  witnesses  disappear  or  "forget"  more  quickly 
and  effectively  in  criminal  than  in  civil  matters. 

Punishment  should  follow  swiftly;  we  think,  in  the  Dominion 
if  a  Canadian  murderer  is  not  lianged  within  a  year  of  his  crime 
be  is  justified  in  complaining  of  being  deprived  of  his  just  rights 
given  him  by  Magna  Charta. 

There  is  abroad  in  some  quarters  a  feeling  of  unrest  and 
dissatisfaction  with  the  administration  of  justice,  civil  as  well  as 
criminal.  It  will  not  do  to  say  that  this  is  due  to  machinations  of 
demagogues,  to  the  ambition  of  politicians  out  of  office.  No  dema- 
gogue or  dissatisfieil  politii  :  ,  can  long  make  any  considerable 
number  of  the  conmiunity  lielieve  in  what  has  no  foundation  in 
fact.  The  causes  of  dissatisfaction  should  be  sought  out  and  if 
possible  removed. 

Some  part  of  this  may  be  due  to  a  misunderstanding  of  the 
.rue  function  of  the  court.  It  seems  impossible  for  some,  and 
those  not  the  most  ignorant  or  least  American,  to  understand  that 
the  court  does  not  make  tlie  law.  Just  as  it  is  said  we  have  in  our 
bodies  remains  now  dormant  and  useless,  even  harmful,  of  or- 
gans which  were  alive  and  active  in  the  reptile  stage  through 
which  we  are  told  our  race  has  come,  so  there  is  away  down  in 
many  minds  the  relics  of  what  was  real  when  the  early  judges 
laid  down  the  law  to  suit  themselves.  As  the  nightmare  which 
frights  the  bravest  before  a  danger  which  does  not  exist  is  said 
to  be  a  rominisccnco  of  the  terror  of  the  ancestor,  the  naked  sav- 
age running  through  the  dark  forest  of  old,  fleeing  a  very  real 


/I 


24 


ilangcr,  bo  the  present  nightmare— if  it  is  right  to  call  it  a  night- 
mare—may  he,  at  least  in  part,  an  atavistic  reminiscence  of  what 
was  .,n<e  a  grim  reality.  It  may  bo  that  means  can  be  foun.l  and 
used  by  the  liar  or  others  to  correct  such  misapprehension. 

But  is  that  the  only  reason?  Of  course  substantive  law  is  for 
tlie  legislature,  but  there  are  many  ways  in  which  the  Court  can  do 
much  to  make  the  administration  of  laws  accord  with  the  require- 
ments of  the  people. 

Conservative,  Courts  must  needs  be  from  their  very  constitu- 
tion, but  that  does  not  imply  that  they  must  be  unsympathetic  to 
any  suggestion  of  im,,rovcment  or  grudging  in  giving  full  effect  to 
amendatory  nu-nsiires,  permi.ssive  or  imperative.     Dignified   tl-- 
should  be,  but  that  does  not  imply  otium  cum  dignitate  with  oUam 
mncty-five  per  cent  of  the  prescription.    Deliberate,  too,  but  tlmt 
doi^  not  mean  so  slow  that  before  judgment  is  given  the  litigant 
■s  dead  or  hope  deferred  has  made  the  heart  sick.    Independent  of 
public  opinion  every  judge  must  be,  but  that  is  not  synonymous 
wi  h  indiflTerencc  to  the  manner  in  which  the  public  receive  his 
judgments  and  the  opinion  the  people  have  of  his  honesty     Like 
Ix.rd  Mansfield,  while  he  should  despise  the  ponularity  that  is 
run  after,  he  may  well  prize  that  which  follows.     He  is  called 
upon  for  imperative  public  reasons  to  avoid  the  very  appearance  of 
evil  and  see  to  it  that  nothing  in  the  manner  of  his  judgments 
IS  unnecessarily  ofiPensive  to  his  fellow-countrj-men,  however  un- 
palatable the  matter  may  be.    That  judge  received  no  commenda- 
tion who,  while  be  feared  not  God,  neither  regarded  he  man- 
and  no  judge  may  use  the  objurgation,  so  well  known  as  attrib- 
uted to  a  multi-millionaire,  "the  public  be  damned." 

The  position  of  a  judge  is  one  of  the  very  highest  to  which  a 
man  can  be  called  in  a  free  country;  the  influence  for  good  of  an 
upright  and  conscientious  judge  is  incalculable;  and  when  he  ex- 
hibits defects  of  manner,  lack  of  prudence  and  decorum,  contempt 
of  the  commonalty,  he  grieves  the  judicious  and  does  as  much  or 
nearly  as  much  harm  as  if  he  were  ignorant  of  law,  indifferent  to 
the  soundness  of  his  decision,  partial  in  his  treatment  of  the  Bar 
or  litigant  and  subservient  to  sinister  interests. 

It  is  a  matter  of  frequent  comment  and  almost  unbounded 


25 


wonder  to  those  under  another  system  that  in  these  United  States, 
judges  wlio  achieve  tlie  Keneli  tliroiigh  a  method  wholly  repugnant 
to  the  sentiment  of  the  British  peoples  are  so  almost  universally 
found  to  be  of  high  legal  attainment,  sound  judgment  and  indi 
pendent  mind.  It  is  a  matter  of  pride  to  all  Knglish  speaking 
lawyers  that  the  method  of  election  or  appointment  has  heen 
tounri  to  be  wholly  immaterial;  the  honest  liiwyer,  who  the  satir- 
ists says  is  the  noblest  work  of  God  and  about  tlie  scarcest,  is 
not  scarce  on  the  Bench  of  the  Union  or  any  of  its  component 
States. 

It  is  a  matter  of  congratulation  that  it  is  almost  unknown 
that  even  the  bitterest  critic  charges  want  of  learning,  ability  or 
honesty  in  the  occupants  of  the  Bench.  It  is,  however,  alleged  that 
dissatisfaction  has  been  felt  with  an  apparent  indifTerenee  to  the  de- 
mands of  an  advancing  society,  an  unsympathetic  attitude  towards 
the  masses.  So  far  as  that  means  that  the  courts  should  cliange 
the  law  laid  down  for  them  by  decision  or  statute,  the  criticism  is 
unjust  and  cannot  be  accepted.  If  it  means  that  rules  are  allowed 
to  crystallize  into  technical  language  so  rigid  that  the  letter  can 
ilefeat  the  underlying  spirit  and  purpose,  "the  case  is  different." 
The  application  of  rules  "must  correspond  with  the  practical  ne- 
cessities of  the  times."  At  least  that  is  so  in  my  democratic 
country;  and  I  ghnlly  adopt  the  language  of  the  great  lawyer 
whom  many  of  you  heard  last  summer  in  Montreal,  the  Lord 
Chancellor,  Viscount  Haldane,  delivering  judgment  in  the  House 
of  Lords,  (1914)  A.  C.  at  pp.  37-38. 

IIow  far  tliose  in  a  land  in  which  a  system  different  from 
ours  prevails  can  go  in  making  the  rules  "correspond  with  the 
practical  necessities  of  the  times,"  I  cannot  say ;  hut  is  not  some  of 
the  real  foundation  (as  distinguished  from  the  political  pretext) 
of  this  agitation,  based  upon  the  conviction  that  the  practical 
necessities  of  the  times  have  not  been  considered? 

Be  that  as  it  may,  it  is  perfectly  certain  that  in  every  free 

country  the  people  will  and  must  have  their  way  in  the  long  run 

with  courts  as  with  all  else.  It  is  the  part  of  the  patriot  and  the 
statesman  to  see  to  it  that  that  way  is  the  right  way,  and  that 
the   right   way   is   found    with    the   least    possible    delay.      The 


m 


m 


riKM  way  in  litigation  implies  ju.ticc  cheap,  gpeedv  full  and 
certain;  and  anything  i„  ,he  constitution  a'nd  practice  of  the 
courta  wh,ch  ,s  not  conducive  to  that  end  i.  wrong  and  must  b^ 
amended;  ,f  by  the  courts  themselves,  so  much  ,he  better  and  tim 
sooner  the  better,  but  in  any  case  it  must  be  amendii 

We  live  in  an  age  of  unrest;  the  principles  underlying  in- 
t,tut,ons  are  be.ng  investigated  as  never  before;  nothing  ifak™ 

.terated  and  rc.:terated  .,uestion  is  "Why?"  "Why?"  .'^ny" 
1  he  courts  should  not  and  cannot  hope  to  be  an  exception.  "If 
our  „rtues  d,d  not  go  forth  of  us,  'twere  all  alike  as  if  we  had 

^"L  vl^e:? '"'°'""°''  "'  "'"-  '^  -  "'  '^'»'-  ^^ 
So  long  as  there  is  a  moral  law  ga^.erning  the  universe  so 
long  as  ,ts  affairs  are  governed  by  the  Divine  Law.  the  vdi" 
must  bo  certain.  With  a  Bar  alive  with  a  keen  sense  of  ^i  „  f 
w^^h  a  Bench  whose  men.bers  can  say  with  truth  and  prL,  'iZ; 
judged  the  people  w.th  righteousness  and  the  poor  with  iudgmeni 
-J..dgmen  have  I  aid  to  the  line  and  righteousness  to  the  pL 
.net-I  have  executed  the  judgment  of  truth  and  peace  in  the 

lese-I  have  done  no  unrighteousness  in  judgment-I  did  not 
r  spect  the  person  of  the  poor  nor  honor  the  person  of  the  migMy 
but  m  righteousness  did  I  judge  my  neighbor-for  I  did  noT  „: 
spec  persons  m  judgment  but  heard  the  small  as  well  as  the 
great  and  was  n^t  afraid  of  the  face  of  man-I  did  not  wres 
judgment  nor  ake  a  gift,  nor  did  I  ask  for  a  reward-^  id  no 
take  bribes  and  pervert  judgment-but  I  judged  righteous  iX 

"'"*\"'f,i",^"""'  "'''^''  ™""^"'  f™"'  the  Lord"-the  ve^dt 
must  be  "Well  done,  good  and  faithful  servants  » 


